Federal Judge Rejects Software Maker's Attack on the First Sale Doctrine

[David Farber <dave () farber net>]

Begin forwarded message:

> From: Paul Levy <plevy () citizen org>
> Date: May 21, 2008 5:42:15 PM EDT
> To: David Farber <dave () farber net>
> Subject: Federal Judge Rejects Software Maker's Attack on the First  
> Sale Doctrine

> I want to call your attention to an important decision won by my
> colleague Greg Beck on behalf of an eBay vendor who buys software at
> yard sales and then resells it on eBay.  AutoDesk claimed that because
> it sticks a shrinkwrap license into the boxes when it sells its  
> AutoCad
> software, nobody is really  buying the software, just taking it under
> license, and hence first-sale doctrine does not protect him against a
> copyright infringement claim.  The judge squarely rejected this
> argument.
>
> I rather expect that Autodesk will be anxious to take this case up to
> the Ninth Circuit.
>
> Paul Alan Levy
> Public Citizen Litigation Group
> 1600 - 20th Street, N.W.
> Washington, D.C. 20009
> (202) 588-1000
> http://www.citizen.org/litigation
>
> > > > Maureen Backman 5/21/2008 5:33 PM >>>
> For Immediate Release
> May 21, 2008
>
> Contact:
> Joe Newman (202) 588-7703
> Maureen Backman (202) 588-7742
>
> Federal Judge Upholds Right of Vendor to Sue Against Anti-Consumer
> Copyright Claim
>
> eBay Vendor Claims Right to Resell Used Copies of
> Products from Software Company
>
> WASHINGTON, D.C. - A California software company’s “license
> agreement” it includes with copies of its products does not prohibit
> buyers from reselling the software on sites such as eBay or anywhere
> else, a federal judge ruled today.
>
> Judge Richard A. Jones denied Autodesk’s motion to dismiss a lawsuit
> filed by eBay seller Timothy Vernor, who is represented by Public
> Citizen and Seattle attorney Michael Withey. Vernor sued Autodesk in
> November after the company prevented him from reselling copies of
> “AutoCAD Release 14.” Autodesk filed several Digital Millennium
> Copyright Act (DCMA) notices with eBay claiming the sale would  
> infringe
> its copyright.
>
> Vernor acquired a used copy of AutoCAD at a garage sale in 2005 and  
> put
> it up for auction on eBay. Autodesk sells this product in a
> shrink-wrapped box that includes a license agreement.
>
> Public Citizen contended that Autodesk’s actions suppressed
> competition and led to higher prices for consumers. Public Citizen
> argues in the complaint that the owner of a copyrighted product can
> resell that product without permission, and that the court should
> protect Vernor’s rights to resell AutoCAD software.
>
> Jones’ ruling, filed in the U.S. District Court Western District of
> Washington at Seattle, stated that Vernor is entitled to protection
> under the First Sale Doctrine, which allows a person who owns a
> lawfully-made copy of a copyrighted work to sell or dispose of the
> copy.
>
> “This sends a clear message to copyright owners that once they sell 
>  a
> copy of their products, they have no right to control subsequent
> sales,” said Public Citizen attorney Greg Beck. “Consumers
> deserve protection against these types of abusive tactics that can  
> force
> consumers to pay higher prices.”
>
> Vernor’s suit against Autodesk will proceed.
>
> To read the case documents, go to:
> http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=437
>
>
> ###
>
> Public Citizen is a national nonprofit advocacy organization based in
> Washington, D.C. For more information, please visit www.citizen.org.
>
> Maureen Backman
> Communications Assistant
> Public Citizen
> 1600 20th St. NW
> Washington, DC 20009
> (202) 588-7741
> mbackman () citizen org
> (202) 588-7742



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